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In re Sealed Case

January 6, 2009

IN RE: SEALED CASE


Appeal from the United States District Court for the District of Columbia (No. 03cv02071).

The opinion of the court was delivered by: Tatel, Circuit Judge

Argued September 15, 2008

Before: ROGERS, TATEL, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit Judge KAVANAUGH.

Appellant, a member of the Vermont Army National Guard, sued the Department of the 2 Army, claiming that the Vermont Army National Guard released his personal information in violation of the Privacy Act. The parties agree that the Privacy Act protects state guardsmen while on active federal duty. Appellant, however, was not on active federal duty at the time his personal information was released. For the reasons set forth below, we hold that the Privacy Act protects guardsmen even when they are not on active federal duty.

I.

Though organized in part through the states, the National Guard functions as "an integral part of the first line defenses of the United States," 32 U.S.C. § 102. Its organization stems from Article I, Section 8 of the U.S. Constitution, which gives Congress authority "[t]o provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." U.S. CONST. art. I, § 8. Through the Department of Defense's National Guard Bureau, the Department of the Army extends federal recognition to state National Guard units that comply with federal criteria; it may withdraw recognition if a unit ceases to comply. 10 U.S.C. § 10503(8). These state National Guard units are known as the Army National Guard. 32 U.S.C. § 101(4). Together, all federally recognized state units comprise one of the reserve components of the Army, known as the Army National Guard of the United States. 10 U.S.C. § 10105. As the Supreme Court has explained, "[t]he Federal Government provides virtually all of the funding, the materiel, and the leadership for the State Guard units." Perpich v. Dep't of Def., 496 U.S. 334, 351 (1990). Although states are responsible for training the Army National Guard and rely on their units under gubernatorial command "to respond to local emergencies," Perpich, 496 U.S. at 351, such training must conform to regulations prescribed by the Secretary of the Army, 32 U.S.C. §§ 501--505. The National Guard thus plays a dual role, operating under joint federal and state control.

The Privacy Act, 5 U.S.C. § 552a, which covers "agenc[ies]" including "military department[s]," §§ 552(f)(1), 552a(a)(1), "safeguards the public from unwarranted collection, maintenance, use and dissemination of personal information contained in agency records." Bartel v. FAA, 725 F.2d 1403, 1407 (D.C. Cir. 1984). The Act protects private information from unnecessary disclosure and enables individuals to correct errors in their files. § 552a(b), (d). At issue here are the Act's non-disclosure provisions.

Appellant, a member of the Vermont Army National Guard, brought a Privacy Act suit against the Department of the Army, alleging that a civilian National Guard employee and other persons had improperly disclosed appellant's highly sensitive personal information, causing him emotional, psychological, and financial harm. Although not disputing appellant's assertion that the Vermont Army National Guard is federally recognized, the Department moved to dismiss, arguing that the Vermont Army National Guard is not an "agency" subject to the Privacy Act. The district court, though recognizing that members of state Army National Guard units are simultaneously members of the Army National Guard of the United States, nonetheless held that the Army National Guard is an agency subject to the Privacy Act only when on active federal duty. Because the Vermont Army National Guard was not on active federal duty at the time of the alleged disclosure, the court granted the motion to dismiss.

The guardsman appeals. Our review is de novo. Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C. Cir. 2008).

II.

Although the National Guard's dual federal-state status has been described as "murky and mystical," Bowen v. United States, 49 Fed. Cl. 673, 676 (2001), this case presents a straightforward question of statutory interpretation: does the Privacy Act's definition of "agency" extend to National Guard units only when on active federal duty? Answering yes, the Department emphasizes the level of state control over National Guard units when not on active federal duty. We agree with appellant, however, that under the plain language of the relevant statutes, the Privacy Act's definition of agency includes federally recognized National Guard units at all times.

The Privacy Act adopts the Freedom of Information Act's (FOIA) definition of agency. § 552a(a)(1); see also Dong v. Smithsonian Inst., 125 F.3d 877, 878 & n.1 (D.C. Cir. 1997). Under FOIA, the term "agency" includes "any . . . military department." § 552(f)(1). Accordingly, we must determine whether the Vermont Army National Guard is part ...


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